United States v. David Tang
718 F.3d 476
5th Cir.2013Background
- Tang pled guilty to failing to register as a sex offender in violation of 18 U.S.C. § 2250(a) after interstate travel.
- He previously had a 2003 Iowa conviction for assault with intent to commit sexual abuse (not causing bodily injury).
- Tang moved from Iowa to Texas; he failed to complete Texas sex-offender registration and the U.S. Marshals located him at a Cypress, Texas address.
- At sentencing, the court imposed a split sentence and three supervised-release conditions: (a) blanket Internet ban absent probation approval, (b) mental health/sex-offender treatment with potential physiological testing and confidentiality waiver, (c) restriction on contact with minors and cohabitation with those having minors (written to include dating).
- Tang’s counsel objected to each condition; the judgment later changed the cohabitation/dating language.
- The appellate court AFFIRMS some conditions and VACATES the Internet ban and dating restriction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court adequately explained the Internet ban and minor-contact restriction. | Tang argues no explicit reasons were given for these two conditions. | Tang contends the reasons were not sufficiently stated per 3553(c). | Plain-error review; error did not affect substantial rights; no reversible procedural error acknowledged. |
| Whether the Internet ban complies with 3553(a) and § 5D1.3(d)(7) or is unjustified. | The blanket Internet ban is not reasonably related to the offense and overbreads liberty. | Guidelines and deterrence support restrictions in sex-offense contexts. | Vacated; district court abused its discretion by imposing a blanket Internet ban not reasonably related to the factors. |
| Whether the mental-health/sex-offender treatment condition, including testing and confidentiality waiver, is permissible. | Tang challenges physiological testing, mandatory nature, and confidentiality waiver. | Treatment options and confidentiality waiver are within proper 3553(d) scope and related to deterrence/rehabilitation. | Affirmed; the district court reasonably included these elements as non-mandatory options with appropriate safeguards and relatedness. |
| Whether the restriction on contact with minors (including Tang’s own children) was properly limited and consistently stated. | Written judgment added dating restriction contrary to oral pronouncement; restriction overly broad. | Restriction relates to history and protects the public; probation officer can grant permissions. | Partially vacated; oral pronouncement controls on the dating-restriction phrasing; restriction on contact with minors remains defensible under §3553. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (procedural sentencing error review standard)
- United States v. Neal, 578 F.3d 270 (5th Cir. 2009) (requirements for preserving sentencing error on appeal)
- United States v. Paul, 274 F.3d 155 (5th Cir. 2001) (abuse-of-discretion standard for supervised-release conditions)
- United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009) (plain-error standard; substantial rights require effect on outcome)
- United States v. Rodriguez, 558 F.3d 408 (5th Cir. 2009) (probationary restrictions may be flexible and delegated to probation)
- United States v. Bishop, 603 F.3d 279 (5th Cir. 2010) (delegation to probation for counseling not plain error)
- United States v. Rhodes, 552 F.3d 624 (7th Cir. 2009) (ambiguous sentencing conditions; modification/appeal rights)
- Pepper v. United States, 131 S. Ct. 1229 (S. Ct. 2011) (policy on individualized sentencing considerations)
- Weatherton, 567 F.3d 149 (5th Cir. 2009) (reasonableness requirement for conditions under 3583(d))
- Johnson v. United States, 529 U.S. 694 (U.S. 2000) (supervised release aims at successful transition to liberty)